Bodfish v. Fox

The opinion of the Court was drawn up by Shepley J. —The defendants were permitted to introduce testimony to prove a usage, existing among the members of the legal profession in the county of Cumberland, to charge the travel and attendance taxed for the defendant as a compensation contingent and dependent upon a successful defence, and in addition to the usual charges for services. And the presiding judge submitted the reasonableness of the usage to the decision of the jury. There are general and particular [95] customs, and those relating to a particular trade or business. General customs are such, as prevail throughout a country and become the law of that country; and their existence is to be determined by the Court. Particular customs are such, as prevail in some county, city, town, parish, or place. Their existence is to be determined by a jury upon proof. The Court may overrule such a custom, if it be against natural reason. When proved and allowed it is binding upon all, over whom it operates. The customs, or perhaps inore appropriately denominated usages, of trade and business, are not necessarily limited to a particular place, but to a particular business or employment. There are usages also showing a particular mode, or amount of compensation in a particular business or employment. But these usages of trade and of compensation do not necessarily bind all, and can never be allowed to operate against an express contract. It is contended, that the testimony to prove the usage in this case was improperly received, and that, if the jury disregarded it, there is therefore no just cause of complaint. It is not unfrequent to find testimony received, to prove the usual compensation claimed and paid, for the purpose of enabling a jury to determine, what is a reasonable compensation, in the absence of a special contract, in cases of the like kind; and how far the parties may have contracted with reference to it. Examples may be found in the reception of testimony to prove the usual charge for wharfage, for the freight or carriage of goods, for the services of commission merchants, of auctioneers of merchandize and money brokers, of various classes of mechanics, and of physicians. And as there is one law for all, without regard to the character of the business or calling, the like testimony may be received to enable a jury to decide upon a reasonable compensation for the services of an attorney. It is further contended, that it should not have been received because there was proof in the letter of the defendants of a special contract to perform the services for an agreed compensation. The usage does not appear to be, as the argument supposes, in conflict with the contents of that letter. Nor [96] does the letter shew, that there was a compensation agreed upon between the parties. It was written, while the suit was pending, and states the charges, which would be claimed for the services performed. The usuage does not present any other or different claim as then existing. It presents one as first arising upon a determination of the suit, favorably for the defendant. Again it is said, that it was improperly received, because the usage would appropriate to the attorney as his property, costs, which by law are taxed for and become the property of the party. The usage as proved does not assume to change the law, and to decide that to be the property of the attorney, which the law determines to be the property of the party. The statement of it is, that it is usual “ for the attorney to charge his client with the taxable costs exclusively of witnesses’ fees and moneys advanced by the client.” This would seem to admit rather than deny, that the legal costs belong to the client, and to claim them of him only as a payment to be made by him out of his own property. It is further contended, that the usage is an unreasonable one, and might therefore properly be disregarded. It is always within the power of the party to make a special contract for the compensation of his attorney, and no usage can have any effect upon his rights, when he has made one. There is nothing in the usage, which determines, that the compensation must necessarily conform to it, when no such special contract has been made. There must be some proof, that the contract of employment had reference to it, or proof arising out of the position of the parties, their knowledge of the course of busi-. ness, their knowledge of the usage, or other circumstance, from which it can be inferred or presumed, that they had reference to it, or it will not necessarily be binding upon them. If a usage of this description, which can only bind the parties from actual proof, or such as would authorize the presumption, that they had reference to it in making the contract of employment, could be the proper subject for the consideration of either Court or jury for the purpose of deciding, whether it was unreasonable and void, the Court would not feel authorized to [97] declare it to be so. Especially after it has been declared, that a custom for the advantage of a particular person or corporation to have the sole use of a trade in a certain place may be good, if the one claiming it have stock enough to serve the place. Mitchell v. Reynolds, 10 Mod. 131. The true question for the consideration of the jury was, whether the usage was so generally known and acted upon, that the parties from that and the other facts and circumstances proved, must be presumed to have had reference to it for the compensation to be paid. In such case it would become, as it were, a part of their agreement and binding upon them. The error consisted in presenting instead of this question, that of the reasonableness of the usage, to the consideration of the jury. The counsel for the plaintiff further, in effect, contends, that if the testimony was properly received and incorrectly submitted to the jury; that the Court should enter upon a consideration of the merits, and decide, that the usage ought not to have any influence upon the rights of the parties. How far the parties in the contract of employment had, or may bo presumed to have had, reference to the usage, is not presented for the consideration of the Court by this bill of exceptions; nor can it be properly made the subject of examination and consideration at this time. To enable it to be properly presented and considered, the exceptions must be sustained, the verdict set aside, and a new trial granted.